Under Valuation of Stamp Duty, an Under Estimation

by Government

(A. Mohamed Mustaque, Advocate, Kannur)

Every day hundreds of notices under S.45(A) of the Kerala Stamp Act (hereinafter called as 'Act') are being issued by the District Collector on reference from Registering Officer. Shortage of Revenue might have prompted Government to raise Revenue by collecting deficit stamp duty. For the Government it is as clear as the light of the day, that Revenue is being defrauded by its people by undervaluing instruments. But it is sad to see that prevailing provisions under Stamp Act are inadequate to prevent the undervaluation of instrument and also incapable to deal with undervalued instruments. Now let us peruse the relevant provisions of the Act.

S.28 of the Act requires 'the consideration' if any, and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable shall be fully and truly set forth therein. Arts. 21, 22, 29 and 31 framed under Stamp Act also deal with manner and rate of stamp payable i.e., according to the value or consideration, set forth in the instrument. So it is very clear that one has to pay the stamp duty according to the consideration. Now the question arises on the satisfaction of requirements under S.28 of the Stamp Act. It can be seen that S.45(A) under Act and Rule 5 under Kerala Stamp (Prevention of Undervaluation of Instrument) Rules 1968 (hereinafter called 'Rules') act as 'check' on the requirements under S.28. S.45(A) of the Act says that, Registering Officer while registering an instrument, transferring any property has reason to believe that the value of the property or the consideration as the case may be, has not been truly set forth in the instrument he may, after registering such instrument refer the same to the Collector for determination of the value or consideration as the case may be, and the proper duty payable thereon.

Now the question here is how to ascertain whether consideration set forth in the instrument is true or not. The R.5 of the 'Rules' lays down the principles for determination of value or consideration. But on close perusal it can be found that these principles are for determining market value, for Eg. in case of the land, nature of the land, value of the adjacent land are being considered. If the District Collector arrived at a rate as according to principles laid down under R.5, it is only a rate according to market value. Therefore the District Collector holding an enquiry, arrives at a rate, for Eg. Rs.3000/- for which infact only Rs.100/- can be the true consideration, the Rs.3000/- that the District Collector valued for the property cannot be the true consideration, it is only a market value. True consideration is nothing but the actual price paid. The collateral facts and circumstances cannot determine the true consideration. If one is insisted to pay the stamp duty according to market value it would contravene Articles 21,22,29 and 31 of the Act and also principles of stare decisis.

It could be found that the District Collector while issuing notice under S.45(A) has not looked at the implications of the same. It is being insisted in such notices that instrument should borne stamp according to and at prevailing market value or according to the value of the adjacent property. The District Collector cannot insist on the executant to pay the Stamp Duty according to the market value which is beyond the scope of section 45 (A) of the 'Act'. S.45(A) can be invoked only for the limited purpose to ascertain whether the consideration set forth in the instrument is true or not, for that rule 5 of the 'Rules' is inadequate. Therefore before running after mischief citizen the government should see that its hands are incapable to hold the mischief. Such being the case in the absence of appropriate legislative amendment to Stamp Act and Rules, the law prevailing will continue to be ineffective to deal with undervaluation of stamp duty. This fact has been consistently emphasized in the District Collector v. John (1975 KLT 486) and in other subsequent decisions.

So the prevailing provisions relating undervaluation can be summarised as follows:--

The Act requires, stamp duty on an instrument shall be payable according to consideration. Therefore consideration becomes criteria.

In case of undervaluation the Act and Rules ascertain the true consideration based on the market value. Then the market value becomes the criteria.

So the end result is the second criteria nullifies the first criteria.

The difficulty involved here is to how ascertain whether the consideration set forth in the instrument is true or not.

The solution to this problem is that no instrument relating to property shall be registered unless market value of the property is shown in the instrument.

Muslim Women (Protection of Rights on Divorce) Act, 1986 -Does it Really Protect?

(By Bhajan Kaur, LL.M., Ph.D., Lecturer, Department of Laws, Punjab University, Chandigarh)

Before the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 [1] the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum [2] held:

"(1) If divorced wife is able to maintain herself the husband's liability ceases with the expiration of the period of Iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to section 125 of the code" [3]

In the light of the Aiyats from the Quran the Court made it clear that even under the personal law of Muslim if a divorced wife is unable to maintain herself after the iddat period the husband is obliged to provide maintenance to her. The court concluded that there was no conflict between the provision of S.125 of Cr. P.C. and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for divorced wife who is unable to maintain herself [4].

This decision in Shah Bano led to an acute controversy. It was praised as it had provided relief to the women, but on the other hand it was condemned as an interference in the personal law of the Muslims. Due to this reason the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed to specify the rights which a Muslim divorced woman is entitled to have at the time of divorce. But after this enactment, again controversy has started on the same question for the clarification of which the Act was passed. The question is:

"Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986, provides that divorced woman is entitled to have maintenance from her husband only during the iddat period or beyond it, if she is unable to maintain herself”.

One answer to this question is "under this Act divorced women cannot claim maintenance from her former husband beyond the Iddat period" [5]. Another view is, this Act has been passed to protect the right of women, and under the Act she can claim maintenance beyond the iddat period [6]. On the other hand it is also said that this Act has been passed "with a view to abrogate Shah Bano judgment…….The avowed purpose of which is obviously to succumb to the pressure of the fundamentalists" [7]. It is submitted that purpose of the Act which is evident from its very title is to protect the interest of women. But how it is really protected by the Act, is the crucial question.

The question which would require determination is whether under S.3(1)(a) a divorced woman is entitled to get a reasonable and fair provision and maintenance only during the iddat period or beyond it.

S.3(1)(a) provides:

"Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to --

(a) reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband";

On the basis of interpretation of the words 'provision', 'maintenance', and 'within' used in S.3(1)(a), Kerala [8] and Gujarat [9] High Courts concluded that under this act husband is obliged to provide his divorced wife for future livelihood, so his liability is not limited for iddat period.

The learned Justice in Ali v. Sufaira [10] while differentiating word 'provision' from word 'maintenance' held:

"The word 'provision' means an amount set apart towards a known liability, the amount which cannot be determined with accuracy. The known liability of a husband is to provide for the future of the divorced Muslim women. He will not be in a position to determine the amount with substantial accuracy, it is for that purpose he has to make provision" [11] "That provision, the learned Judge said, "will be entirely different from the maintenance due to the divorced muslim woman for the period of iddat." [11]

With great respect to the learned Judge it is submitted that, no doubt the word 'provision' mean amount set apart for known liability or something supplied for the future; but it does not mean something supplied for the whole life or for a specified period without such specification. It may be for one day, or two days or for many years or for life if specified so, but without any specification the word 'provision' itself does not mean something supplied for future up to whole life (or any period). S.3(1)(a) lays down that a divorced woman shall be entitled to reasonable and fair provisions (and maintenance) within the iddat period.

Now question arises what does this word 'within' mean"? Does it mean 'for' or 'during'?

According to Gujarat High Court [12] the word ‘within' used in S.3(1)(a) of the Act should not be read as 'for' or 'during'.......The word 'within' would mean 'on' or 'before' not 'beyond' not 'later'. The word 'within' which is used by the Parliament under the Act would mean that on or before the expiration of iddat period, the husband is bound to make and pay a reasonable and fair provision and maintenance to the wife. This mean that at the time of giving divorce the husband is required to visualize or contemplate the extent of the future needs and make preparatory arrangement in advance for meeting the same [13]

The learned Judge reached this conclusion on the reasoning that this conclusion is fortified by the provisions of Ss.4, 5 and preamble of the Act which lay down that this Act has been enacted to protect the interest of divorced women. [14]

It is submitted if she can claim maintenance from her husband beyond the iddat period than what was the need to provide series of alternative under S.4 [15] of the Act.

While commenting on S.4 the learned Judge said:

"This section contemplates a situation where the divorced woman is not in a position to maintain herself after receiving maintenance in lump sum from her husband or provision which was found to be reasonable and fair (under S.3(1)(a) at the time of taking divorce. The learned Judge said, "Take for an example, woman is likely to remarry and provision made but subsequently it turns out that she is not in a position to remarry for some reasons". Take another instance where both the parties visualise that there are no chances for remarriage for divorced woman and reasonable and fair provision is made for her future maintenance and yet for some accidental reasons, she is required to spend all the amount then in that case she cannot ask her former husband to pay further maintenance. This may happen because of some unforeseen illness such as cancer or such other disease or due to accidental injuries where in the divorced woman is required to spend huge amount for curing herself or her minor children". [16]

With great respect to the learned Judge it is submitted that this view does not seem correct. Suppose if both the parties visualize that there are no chances for remarriage and maintenance is paid in lump sum, but later on if she remarry; can husband get back the money paid by him? Obviously he cannot. This also becomes clear by subsection 3. Sub-section 3 provides how the Magistrate is required to proceed with the said application. The Magistrate has to be satisfied that:

(i) her husband was having sufficient means and

(ii) has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children (up to 2 years for children).

After taking into consideration the aforesaid facts he may make an order, within one month of the date of the filing of the application, directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to (a) the needs of the divorced women, (b) the standards of life enjoyed by her during her marriage and (c) the means of her former husband.

This sub-section does not require that the reasonable and fair provision and maintenance is to be paid and made in lump sum or remarriage of the woman shall be taken into consideration, because under Muslim law woman cannot marry during iddat period (where iddat period is provided) her former husband is liable to maintain her during this period, though she is able to maintain herself. After the iddat period she can remarry. If she does not remarry and is unable to maintain herself after iddat period (which may be even after a lapse of many years or immediately after the iddat) she can file an application under S.4 of the Act.

Commenting on S.5 [17] of the Act learned Judge is of the view that, S.5 gives option to the parties to be governed by the procedure under S. 125 of the Cr. P.C. or under the provision of the Act. This would prima facie mean that there is no inconsistency or repugnancy between the general provision ofS.125 to 125 of Cr. P.C. and the Muslim Women Act. If S.3(1)(a) is interpreted to mean that the former husband is bound to provide maintenance only for iddat period, then in no set of circumstances it can be expected that a former husband would pay future maintenance. The result would be that in almost all divorced women would like to be governed by the provisions of S.125 and the former husband would refuse to be governed by the provisions of S.125 of Cr. P.C. Under Cr. P.C. the maximum amount which a divorced woman would get is only Rs.500/-, even though her former husband is millionaire. The Court said, the objected criteria for determining what would be reasonable and fair provision and maintenance for her in sub-section 3 is the need of the divorced women, the standard of life enjoyed by her during her marriage, and means of her former husband, meaning there by if her former husband is millionaire, he is bound to make provisions, in accordance within his means.

It is submitted that if the above mentioned view is correct, it is difficult to imagine that the wife would agree to be governed by S.125 to 128 of Cr. P.C. So S.5 would be redundant or otiose.

In the considered view of the Court this Act grant more relief to divorced women depending upon the financial position or her former husband. It is respectfully submitted that no doubt this object is audible, but is it achieved by the Muslim Women Act? If not, this kind of interpretation would give rise to controversy. On the other hand if we accept that husband's liability is only during the iddat period, then it means Muslim Women are adversely affected and they are denied from benefit available to them under S.125 to 128 of Cr. P.C, which is a secular law and applicable to all, irrespective of their religion. So it is discriminating under Article 14 of Indian Constitution. Thus the possibility of completely opposite interpretation made it clear that it is a very hastely drafted Act which needs clarification on the same question for the clarification of which it was enacted.

___________________________________________________________________

Footnotes:

1 Hereinafter referred to 'Act'.

2 AIR 1985 S.C. P.945, Para.14, At p.950-51.

3 Criminal Procedure Code (2 of 1974). Here in after referred to Cr. P.C.

4 AIR 1985 S.C. p. 945, para.22.

5 V.R. Krishna Iyer, The Muslim Women (Protection of Rights on Divorce) Act, 1986, at p.12-13, (Ed.-1987).

6 Ali v. Sufanra, 1988 (2) KLT 94.

A.A. Abdulla v. A.B. Mohmuna Saiyad Bhai, AIR 1988 Guj. 141.

7 Paras Diwan, Muslim Law in Modern India, (1987) at p.155.

8 Ali v.Sufaira, 1988 (2) KLT 94.

9 Supra Note 6.

10 Supra Note 8.

11 Id.P.98-99. Court relied on the interpretation of the word 'provision' given by Supreme Court in Metal Box Company of India Limited v. Their Workmen, AIR 1969 S.C. 612.

The word 'maintenance' the learned Judge said as per Webster's Third New International Dictionary means:

"The act of providing means of support for someone, means of sustenance; designed or adequate to maintain a living body in a stable condition without providing reserves, for growth, functional change, or healing effect".

12 A.A. Abdulla v. A.B. Muhmuna Saiyadbhai, AIR 1988 Guj. p.141, p.17, p.149-150.

13 Id. para 16, p. 149.

14 AIR 1988 Guj. p. 141.

15 S.4 lays down:

(i) "Notwithstanding anything contained in the foregoing provisions of this Act or any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order:

Provided that where such divorced woman has children the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance the Magistrate shall order the parents of such divorced woman to pay maintenance to her:

Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may fit to order.

(ii) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the proviso to sub-section (1), the Magistrate may, by order, direct the State Wakf Board established under Section of the Wakf Act 1954 (29 of 1954), or under any functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or as the case may be, to pay the shares of the relatives who are unable to pay, at such periods as he may specify in his order".

16 Supra Note 14.

17 S.5 lays down:

"If, on the date of the first hearing of the application under sub-section (2) of S.3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of S. 125 to 128 of the Code of Criminal Procedure 1973 (2 of 1974), and file such affidavit or declaration the court hearing the application the magistrate shall dispose of such application accordingly".

Office of the Advocate General, Ernakulam

Present: Shri. K. Sudhakaran, Advocate General

Saturday, the 15th June 1991

Applications Sanction Petition Nos. 2 & 3 of 1991

(Under the Contempt of Courts Act)

The Fertilisers & Chemicals Travancore Ltd.,

Udyogamandal, represented by its duly constituted

 Attorney and Chief Manager (L.S.)                                                                Petitioner

Mr. P.K. Somasundaran Nair

v.

1. Mr. Pritish Nandy, Editor & Publisher, The

Illustrated Weekly of India of the Times of

India Group Magazines, Registered Office at

Bennett Coleman & Co. Ltd., Dr.D.N. Road,

Bombay-400001                                                                                                Respondents

2. Mr. Venu Menon, Special Correspondent,

The Illustrated Weekly of India of the Times of India

Group Magazines, "Belhavan Gardens", Kaudiyar,

Thiruvananthapuram - 695003.

These petitions having been heard on 1-4-1991, the Advocate General passed the following:

ORDER

These applications have been filed by F.A.C.T. Ltd., under S.15 of the Contempt of Courts Act. Mr. Pritish Nandy, the Editor and Publisher of the Illustrated Weekly of India and Mr. Venu Menon, its correspondent, are the respondents in both cases. In both cases the allegation is that the respondents have published articles which tend to interfere with the conduct of cases pending before the Hon'ble High Court of Kerala. Application No.2 of 1981 relates to a service issue in the petitioner company, in respect of which O.P. No.2715of 1990 is pending and Application No. 3of 1991 relates to a public interest litigation, O.P. No.4635 of 1989, regarding the alleged hazard caused by an ammonia storage tank belonging to the petitioner. The applications have been heard together and it is proposed to deal with them by a common order. I shall deal with 'application No.3/91 first as it raises more important questions.

Application No. 3 of 1991

The petitioner M/s. Fertilizers and Chemicals Ltd., pray for consent of the Advocate General under S. 15 of the Contempt of Courts Act hereinafter referred to as the Act claiming that Illustrated Weekly of India of which the first respondent is the Editor and Publisher and the second respondent is the Special Correspondent, has published an Article under the caption "Replay Bhopal" which according to the petitions is "Criminal Contempt" under the Act.

It is stated that the Company had joined issue on this very matter in the Origin. Petition referred to above and has filed counter affidavit and while the matter is pending. consideration of the Court, the Article was published. In the objection filed by the respondent, they contend that the Article does not in any way prejudice or interfere with the due course of judicial proceedings and that what the Article dealt with is a matter of great public importance. It is also pointed out that what is pending before the Hon'ble Court is not a litigation which can be termed as an adversorial litigation, but a public interest litigation. It is also mentioned that what is sought to be emphasised in the article is "right to live", a fundamental right guaranteed under Art.21 of the Constitution and such the Press has to ventilate its views. The petitioners and the respondents were head Shri. P.K. Kurien and Shri. K.S. Rajamony have appeared for the petitioners and the respondents respectively. Shri. P.K. Kurien relied on the fact that the article itself mentions about pendency of the case. He specifically pointed out that from a reading of the Original Petition referred to above and the counter-affidavit filed by the petitioner several matters which are in issue in the Original Petition have been stated in the publication. He fairly stated that since it is not a criminal matter and since the: is no jury or witnesses the question is whether the article in question will tend prejudice or interfere in the decision making-process, so that it directly interferes or tends, to interfere with the judicial proceedings.

Mr. P.K. Kurien, laid emphasis on the fact, that the very subject of the article  arises in the writ petition and in such a case, going by the definition of criminal contempt it can be safely considered that it docs "prejudice", interfere or ‘tend to interfere' with the "due course" of the "judicial proceedings". With his usual clarity he queried as to what else is the purpose of the enactment and the definition of "Criminal Contempt except to bring into its fold all those cases which tend to interfere with due course of judicial proceeding. Here the proceeding is already there, there is a publication specifically touching on the subject and therefore it has to be inferred that it will tend to interfere with the due course of judicial proceedings, is his stand.

While there are publications which, if contemporaneously done will definitely prejudice the course of a judicial proceeding there may also be cases wh. will not tend to interfere with the due course of such judicial proceeding. In lndian Law of Contempt the "strict liability rule" as in England (1981 Act) is absent, nor is there definite limitations to the "strict liability rule".

Under S.20(i) of the Act the words are "Scandalise or tend to Scandalise" whereas in S.2(c)(ii) after the word 'prejudice' the words "tend to prejudice" is absent. Again, after the word "interfere" the words "tend to interfere" are present. In the same way the words "the due course of any legal proceeding" is also significant. Under S.2(c)(ii) if publication does not prejudice but only tend to prejudice, it is not Criminal Contempt. When an article is written on a subject which has a bearing on the very subject which is pending before a Court, it may tend to interfere, if it is a criminal case, but when it is a writ proceeding where there is no question of witnesses or jury (as in a criminal case) the definition is attracted only if the course of justice, in the proceeding, is prejudiced.

Attorney General v. Times Newspaper Ltd., 1973 (3) All. ER 54 is an important milestone in the history of Contempt of Courts case in England. The European Court of human rights held that the decision of the House of Lords was a breach of the European Convention on Human Rights to which the U.K. Government was asignatory. It led to the passing of the 1981 Contempt of Court Act. This clearly shows a commonsense approach that a case in a Court shall not stifle comments and discussions on a subject of vital interest if there is no real risk of prejudice. One will have to distinguish between contempts where the risk is real, the "technical" contempts. English Courts have recognised this when they commented on the Attorney General's decision not to take contempt on an Article published on September 24,1972. The Court said "An advantage of recognising the useful role of the Attorney General in the administration of the law of contempt is that it should tend to spare the Courts from being burdened with adjudications on many purely technical contempts" (emphasis added). Lord Morris of Borthy Gests states "A Court will therefore find "Contempt" where the risk of prejudice is serious or real or substantial". Anthony Avlidge and David Lady, joint authors of the Law of Contempt (1982) summarised the decisions as follows:-

"Simply stated it is that there must be a real risk or prejudice".

The Supreme Court in AIR 1953 S.C. 185 had approved the decision of Rankin C.J. in AIR 1931 Cal. 257. The jurisdiction in contempt is not to be invoked unless there is 'real prejudice'. The Kerala High Court in 1960 KLT 792 (D.B.) has followed these decisions. What Illustrated Weekly of India did was to publish articles on a subject which was being discussed in newspapers and platforms. I hold that there is no criminal contempt coming under S.2(c)(ii) and reject the application.

Application No. 2 of 1991

Having carefully gone through the pleadings, especially the reliefs prayed for by the petitioner in the Original Petition which is one relating to his service, I do not find that there is anything which poses a risk of prejudicing the Court in its decision-making process when it has to decide whether the Court will grant the reliefs. No court will in any way be influenced, let alone be prejudiced, by the statements in the article. Once again Rankin C.J.'s words are pertinent that the Court "will not exercise its jurisdiction on a mere question of propriety". What Mr. P.K. Kurien eloquently characterised as "interference" and "prejudice" drawing my attention to certain statements in the article about the employee are matters which a Court may find improper. But the sword of Criminal Contempt is not the weapon to be unsheathed in cases of impropriety. I refrain from granting consent under S.15 of the Act.

Both the petitions are dismissed.

Dated this the 15th day of June, 1991.

K. Sudhakaran

Advocate General

Before the Advocate General, Kerala, Ernakulam

Present: Shri. K. Sudhakaran, Advocate General

Wednesday, the 7th day of November,

1990 Sanction Petition No.3 of 1990

(Under the Contempt of Courts Act)

Raju K. Mathews, Advocate, High Court of       :

Kerala, Ernakulam                                                 :                               Petitioner

v.

1. Justice V.R. Krishna Iyer (Retd.)                     :

"Sathgamaya",                                                        :

M.G. Road, Kochi - 682011                                  :

                                                                                                      Respondents

2. K Balakrishnan, Editor,                                     :

Printer & Publisher,                                               :

"The Express", Thrissur.                                       :

This petition having been heard on 5-11-1990, the Advocate General passed the following:

ORDER

The petition is filed by an Advocate of Kerala High Court requesting for consent under S.15(l)(b) of the Contempt of Courts Act to initiate proceedings for criminal contempt against Sri. V.R. Krishna Iyer and Sri. K. Balakrishnan, Printer, Publisher and Editor, "Express" newspaper.

The allegation is that Sri. Krishna Iyer has committed contempt by certain remarks that are "derogatory to the Judges and the entire judiciary" and that the Editor had committed contempt by publishing the report of the speech.

The petitioner and the respondents were afforded opportunity to be heard. In reply to a letter informing him about the allegation, Sri. V.R. Krishna Iyer sent a reply dated31-10-1990.TheEditorfiledacounterstatement dated 30-10-1990. The petitioner and the Editor were represented by Advocates. They were heard on 5-11-1990.

The offending remarks said to be made by Sri. Krishna Iyer is stated in the petition as follows:-

"Any nayadi if made a judge would be no worse than the present judges".

Sri. Krishna Iyer stated in his reply:--

"My point obviously was that because a man is born "nayadi", he is not for ever unworthy of being elevated to the Bench".

A Photostat copy of the new-item was produced along with the petition. The report referred to a symposium held under the auspices of the Kerala Bhramana Sabha. The topic was "Social justice to all Sections". Speakers representing all points of view attended the meeting. In an illuminating discussion before an enlightened audience every speaker is entitled to present his view forcefully. Shri. V.R. Krishna Iyer had put mildly what Swami Vivekananda advocated in the last century forcefully. As Dr. S. Radhakrishnan said "Vivekananda called one part of our country a lunatic asylum". It was in this part of the country Swami Vivekananda found over and above untouchability a practice which was known as "theendal" and that too between members professing the same religion. The term nayadi projects the practice of insisting by the higher caste person that the persons in the lowest caste should not be even allowed to pollute the atmosphere within a particular distance. Gunndert in his dictionary defines nayadi as follows:

"The lowest caste, a jungle dweller ordered to retire 74 steps from high caste hence “cIp \mbmSn¸mSp Zqcw” The use of the expression of "nayadi" by Sri. V.R. Krishna Iyer was to emphasise that merit will not be a casualty even in judiciary if a nayadi is appointed. Swami Vivekananda has said "You have long suppressed these forbearing masses. Now is the time for retribution". In answering a challenge against reservation in favour of scheduled castes, Justice Sivaraman Nair in 1984 KLT 682 had stated as follows:-

"What the Scheduled Castes and Scheduled Tribes were assured in the Constitution are retribution for the sins of history".

In a decision Justice K.T. Thomas had stated as follows:--

"For generations in the past members belonging to Scheduled Castes/Scheduled Tribes were unfortunately kept under man made restrictions which blunted and stunted their intellectual faculties and muffled their academic aptitudes" (O.P. No.3787/88 Kerala High Court).

When Shri. V.R. Krishna Iyer makes a point that even in such high posts of Judges a low caste man whom one had ordered to retreat to the farthest distance will shine as much as any other there is no question of bringing disrepute to the Judges or Judiciary. Nor there is anything which tends to scandalise or tends to lower the authority of any Court.

Speaking of the exercise of the Court's power to punish for contempt, Lord Denning once said: in R v. Metropolitan Police Commissioner: "let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations". (1968 (2) All England Law Reports 319).

On a careful consideration of all aspects, I find that the petitioner has not made out a case for consent under R.15(1)(b). The petitioner is therefore rejected.

Dated this the 7th day of November, 1990.

                                                                                                      K. Sudhakaran

                                                                                                      Advocate General

The Teaching of Muslim Law at Cambridge University.

David Pearl, "A Textbook on Muslim Personal Law'

(London: Groom Helm, 1987)

(By Dr. Lucy Carroll, Huntingdon, Cambs, U.K.)

Although David Pearl has been teaching Muslim law -- and specifically Muslim law in South Asia -- at Cambridge University for some two decades, and although this is his second attempt at compiling an elementary statement on the subject, the second edition of his 'textbook' is even more highly impeachable than was the first (1979) edition. [1] The defects stem from and reflect the author's profound ignorance of South Asian case-law and South Asian statutory law: his heavy reliance on (uncited) secondary sources: and his inability to use his (uncited) secondary sources with even minimal competence and intelligence.

A single example will suffice to illustrate the caliber of this 'textbook' and the manner in which it has been compiled.

The following extraordinary statement occurs in the 1987 edition in the context of discussing divorce litigation and the Dissolution of Muslim Marriages Act, 1939: this statute (subject to amendments effected by the respective states) is applicable in India, Pakistan, and Bangladesh.

(DP) The arbitration procedure, available in classical Maliki law..........is not mentioned in the 1939 (Dissolution of Muslim Marriages) Act. However, by Order XXXIIA (1976) the Code of Criminal Procedure (1898) has been amended so far as Pakistan is concerned to make it the responsibility of the Court where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject matter of the suit. The court has power to adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement. (David Pearl, 'Textbook', 1987 edn., p.136; emphasis added.)

The first sentence of the above extract appears in the 1979 edition of David Pearl's 'textbook' (p.112); the remainder of the extract is new material appearing for the first time in the 1987 edition.

One does not have to be familiar with Asian or Muslim law to realize that a suit for divorce, being a civil matter, is extremely unlikely to be governed by the provisions of the Criminal Procedure Code: surely such a matter would come under the Civil Procedure Code:

Secondly, anyone familiar with Pakistani law will know that although executive orders may be executed in the name of the President, such an order is termed a 'President's Order' (abbreviated 'P.O.'), not merely an 'Order.' Thirdly, the very form of the identification number (XXXIIA) is unlike the numbering of any Presidential Order I have ever seen. Fourthly, an executive order cannot amend a statute; that would require an 'Ordinance.' But Ordinances are numbered numerically and consecutively; I have never come across an Ordinance number suffixed by a letter of the alphabet.

On the other hand, of course, when an amending statute introduces a new section or clause into an existing statute, the newly added provision frequently contains an alphabetical suffix to distinguish it from the clause or section in the original statute which it succeeds. And a reference to 'Order XXXIIA' in the context of divorce litigation would immediately cause one to think of the Orders found in Schedule 1 of the Civil Procedure Code, 1908; prima facie., a reference to 'Order XXXIIA' in the given context would refer to an Order following 'Order XXXIF in the Civil Procedure Code.

What in the world could David Pearl possibly be thinking of in making the (prima facie, patently absurd) statement to the effect that in Pakistan, in 1976 and by means of 'Order XXXIIA,' the Criminal Procedure Code was amended in a manner significantly affecting the conduct of divorce litigation? What in the world could be possibly have so grossly misread? What (uncited) secondary source is he attempting to paraphrase?

The following extract from Professor Tahir Mahmood's critique of the first edition of David Pearl's 'textbook' sheds a great deal of light on the matter:--

(TM) Commenting on the 1939 Dissolution of Muslim Marriages Act......

David Pearl says:

The arbitration procedure available in the classical Maliki law ..... is not mentioned in the 1939 Act.

He is right. This, indeed, is a shortcoming in the Act and is all the more deplorable in view of the fact that in the subsequently enacted Hindu Marriage Act there is a directive for the courts that they must attempt a reconciliation between the quarrelling spouses before granting a remedy. In 1976 this provision has been modified in order to enable the court to refer the dispute to arbitrators. (Footnote reads:-- 'See Hindu Marriage Act, 1955, S.23(2) and (3).....For details see Tahir Mahmood, "A Study of the Hindu Marriage Act, 1955," 174-176 (Allahabad, 1980).'). It must, however, be noted that by an amendment made in 1976 in the 1908 Civil Procedure Code the courts have been put under an obligation to make efforts for 'settlement' (with the assistance of arbitrators or welfare experts) in all 'matters concerning the family.' (Footnote reads:- 'See Order XXXII-A added by the C.P.C. [2] (Amendment') Act, 1976.'). The new provision also applies to proceedings under the 1939 Dissolution of Muslim Marriages Act. (Footnote refers to Tahir Mahmood, 'The Muslim Law of India,' p.10; and further states that the text of O.XXXII-A may be found in Tahir Mahmood, 'A Study of the Hindu Marriage Act.') (Tahir Mahmood, 'Review of David Pearl, "A Textbook on Muslim Law,'" Islamic and Comparative Law Quarterly, 1 (1981) : 87-93, pp.90-91; emphasis added.)

It is, firstly, abundantly clear that Tahir Mahmood is speaking of the situation in India, not Pakistan: the Hindu Marriage Act, 1955, is an Indian, not a Pakistani, statute; and Tahir Mahmood's book to which reference is made is entitled 'The Muslim Law of India.'

Secondly, the statute in which the relevant amendment was made in 1976 is clearly stated to be, as one would expect, the Civil Procedure Code, 1908, not the Criminal Procedure Code, 1898. Thirdly, the amendment is clearly stated to have been effected 'by the C.P.C. (i.e., 'Civil Procedure Code') (Amendment) Act. 1976,' not 'by Order XXXII-A'.

And fourthly, the effect of the particular amendment of the Civil Procedure Code effected by the Civil Procedure Code (Amendment) Act, 1976, here under consideration is clearly stated to have been the addition of Order XXXII-A to the Civil Procedure Code.

Yet --and in spite of the fact that the (uncited) source from which he is directly working could hardly have been more clear and explicit -David Pearl manages to make several ridiculously gross errors in his attempt to appropriate the information (without citation of the secondary source from which he is directly working): (1) he converts the amendment of the Civil P.C., 1908, into an amendment of the Criminal P.C., 1898; (2) he converts an amendment applicable only in India into an amendment applicable only in Pakistan; (3) he converts an amendment effected by the Indian Civil P.C. (Amendment) Act into an amendment effected by Pakistani 'Order XXXIIA;’ and (4) he is unable to explain exactly where in the long (approximately 350 pages) statute in which he states the new provisions now appear (i.e., the Pakistan Criminal Procedure Code) these new provisions will be found, because he does not realize that 'Order XXXIIA' refers to the new Order introduced into the relevant statute (the Civil Procedure Code) following Order XXXII, and that it does not refer to the instrument effecting the amendment of the original statute.

As if this were not enough, David Pearl has obviously appropriated (again without citation of the source from which he is working) further information on the terms of the new clause (i.e., the new Order XXXIIA incorporated in 1976 in the Civil Procedure Code as applicable in India) from the extract from the 1976 Civil Procedure Code (Amendment) Act provided in Professor Mahmood's book on Hindu Law (in India), to which reference was made by Tahir Mahmood himself in the passage from his review of the first edition of David Pearl's 'textbook' set out above. This appropriation from Tahir Mahmood's (uncited) work is patently obvious from the simple fact that David Pearl certainly did not find the terms of the new clause in any Pakistani 'Order' of 1976, or in any revised and updated text of the 'Code of Criminal Procedure' as applicable in Pakistan - the sources which he implies he is familiar with and has used; the sources to which readers are referred. It is absolutely clear in Tahir Mahmood's work that he (Mahmood) is referring to Indian law, to a 1976 Indian amendment of the Civil Procedure Code, which added Order XXXII-A to that statute as applicable in India:

Further, the South Asian statutes dealing with procedure (the Civil Procedure Code, 1908, the Criminal Procedure Code, 1893, [3] and their predecessors) were enacted during the British period and based on English law and practice. The Orders and Rules found in Schedule 1 of the Civil Procedure Code, 1908, are not dissimilar in either form or content to the orders and rules applicable in English courts and set out in the practice manuals, with which any English lawyer should be familiar [4] .Thus Order XXXII and the Rules thereunder found in the (British-Indian) Civil Procedure Code, 1908, deal with 'Suits by and against Minors and Persons of Unsound Mind.' Compare with e.g. Order 16 Rules 16-21, The Annual Practice, 1911; [5] and Order 80 Rules 1-16, The Supreme Court Procedure, 1988. [6] Order XXXIIA, added by an Act of the Indian Parliament in 1976, introduced a new and additional set of Rules applicable to 'Suits Relating to Matters Concerning the Family,' the text of which may be readily located by anyone familiar with South Asian legal reporting. The relevant documentation is, needless to say, even available in the Squire Law Library, Cambridge:

And, of course, anyone familiar with South Asian case-law (even if totally ignorant of English law and procedure) would be familiar with the frequent references to 'O. -- R. --, C.P.C. in the reported civil judgments, and would know that the reference is to 'Order -- Rule -, Civil Procedure Code.'

It may be noted that there is no 'Order XXXIIA' to be found in the Civil Procedure Code applicable in Pakistan; no one would expect to find provisions, such as those David Pearl is paraphrasing, in the Criminal Procedural Code.

As far as Pakistan is concerned, the legislation which David Pearl should have discussed, but has clearly never read, is the West Pakistan Family Courts Act, 1964. [7] The Family Courts, established under this Act, have exclusive jurisdiction inter alia in regard to 'Dissolution of Marriage; [8] suits brought under the Dissolution of Muslim Marriages Act would, in Pakistan, be heard by the Family Court and dealt with according to the procedures laid down by the Family Courts Act, 1964.

Sections 10 and 12 of the Family Courts Act, 1964, impose upon the Family Court the duty of attempting to effect a 'compromise or reconciliation between the parties' at two points in the proceedings, i.e., at the pre-trial stage and after the closing of evidence.

It is also important to note that the Family courts Act explicitly provides in S.17 that (with certain specific exceptions [9]) the 'provisions of the Code of Civil Procedure, 1908, ..........shall not apply to any proceeding before any Family Court.' This necessarily means that alterations in procedure applicable to divorce litigation (such as that which David Pearl asserts occurred in Pakistan in 1976) would not be occasioned by an amendment of the Civil Procedure Code (such as actually happened in India), but by an amendment of the Family Courts Act, 1964, or the Rules framed under it. And, of course, such an alteration in procedure applicable in civil litigation would not, in any case, be accomplished by amending the Criminal Procedure Code, as David Pearl states happened in Pakistan!

It needs to be strongly emphasized that if David Pearl had honestly cited the secondary sources from which he directly worked, readers and students would be readily able to check the source so cited when the statement occurring in the 'textbook' appears of questionable veracity or is verbally imprecise and/or confused - any anyone familiar with this 'textbook' will be aware how very frequently such situations arise. Indeed, one wonders how David Pearl would reply to a student [10] who, relying on his 'textbook', failed to find among Pakistani statutes the Pakistani 'Order XXXIIA' of 1976 (which, according to David Pearl, amended the Criminal Procedure Code in regard to the procedure applicable to divorce litigation), and also could not locate the new provisions paraphrased by David Pearl in any amended and updated text of the Pakistan Criminal Procedure Code. Clearly David Pearl would not even be able to tell his questioner in which chapter of the very lengthily (approximately 350 pages) Criminal Procedure Code the new provisions appeared!

It is abundantly clear that David Pearl has never worked systematically through Sough Asian case-law, or through South Asian statutory law. An individual so heavily dependent on secondary sources (which he deliberately refrains from citing) will always be years out of date and less than well-informed. Only be adding to this observation David Pearl's demonstrated inability to use his (uncited) secondary sources with minimal competence and intelligence does the highly impeachable standard of this 'textbook' finally become explicable. Yet this 'textbook' represents the caliber of instruction in Muslim law which has prevailed in the law faculty of Cambridge University for some two decades. And, given that the lectures of this Cambridge University 'don' are now available (and have been available for the past decade) in something unfortunately termed a 'textbook', this book also represents the standard of instruction on the subject that is available to students at other U.K. institutions.

One can at least hope that Indian law schools and universities will ignore this 'textbook' and will not waste valuable foreign exchange in acquiring it for their libraries or their students.

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Footnotes:

1. David Pearl, 'A Textbook on Muslim Law.' London: Croom Helm, 1979. See Lucy Carroll, 'Muslim Family Law in South Asia: A Critique of David Pearl, "A Textbook on Muslim Law,"' Islamic Quarterly, 24 (1980): 35-47. See also Lucy Carroll, Islamic and Comparative Law Quarterly, 3 (1983) : 34-48.

2. 'C.P.C.' stands for 'Civil Procedure Code, 1908; the Criminal Procedure Code, 1898, is abbreviated 'Cr. P.C

3. Repealed and replaced in India by the Code of Criminal Procedure, 1974.

4. And, of course, David Pearl is not merely an English lawyer: having on the requisite number of occasions, downed his evening repast within the confines of an 'Inn of Court,' he claims the curiously prestigious title of 'barrister' - indeed, a barrister of more than twenty 'years call.' Surely this title implies (in addition to possession of such academically extraneous knowledge as e.g. what knife to use with the fish course) some minimal familiarity with English law - or at least, so one might naively assume.

5. Being a Collection of the Statutes, Orders, and Rules Relating to the General Practice, Procedure, and Jurisdiction of the Supreme Court.' By B. Fossett Lock, Richard White, and Francis A. Stringer. London: Sweet and Maxwell.

6. Edited by Sir Jack I.H. Jacob, et. al. London: Sweet and Maxwell.

7. Note that this extremely important statute of 1964 was not mentioned in the 1979 edition of David Pearl's 'textbook;' the brief mention of it in the 1987 edition (p.70) makes it clear that he had not actually read it even by that date. Needless to say, in 1987 he had not yet learned of the Indian Family Courts legislation.

8. Family Courts Act, 1964, S.5 and Schedule.

9. E.g., Ss.10 & 11 of the Civil Procedure Code (res judicata, etc.) apply to cases before the Family Courts (Family Courts Act, S.17); service of summons on the defendant is to be in accordance with Order V, Rules, 9, 10, 11, 16, 17, 18, 19, 21, 23, 24, 26, 27, 28 and 29, Civil Procedure Code (Family Courts Act, S.8(6).

10. David Pearl has undoubtedly been propounding the ridiculously absurd material concerning the Pakistani 'Order' amending the Criminal Procedure Code to his Cambridge students since 1981 (when Tahir Mahmood's review of his first edition was published). Obviously these students, over several years, mindlessly memorized it; if there were any negative feedback, it was clearly not sufficient to cause David Pearl to rethink the matter and check his (uncited secondary) sources or to save any thinking student from a poor mark on an examination.